Here comes into picture the importance of the constitutional function embedded in the Constitution
to be enforced by the courts, to be assimilated by the population, the importance of meaning of
Bharath. If all citizens of this country consider as one Nation, having one object in life, at the same
time, following their own religions, precepts, their own language tenements, and the cultural
propagation within the bounds of Bharatiya, can these Minority Institutions under Article 29 and 30
of the Constitution of India can be said that they are in any way misused with regard to nationalism..
Administration is responsible if there is any misuse of these Articles.
Approach by the Hon’ble Supreme Court:
Apex court has continuously held that these two Articles are
Protective and Protective only
are not
in conflict and they are not intended for any special identity of citizens of Bharath in the
administration of the country or in the following of their faiths or in their personal lives.
Without going into various Judgements of the Apex Court the leading case on this aspect is T.M.A Pai
Foundation & Others (Petitioners) Vs. State of Karnataka & Others (Respondents) 2002(8)Scale. In
this judgement, it was held in paragraph 161, page 61 in the answer “Linguistic and religious
minorities are covered by the expression “Minority” under Article 30 of the Constitution. Since
reorganization of the states in India has been on linguistic lines, therefore, for the purpose of
determining Minority, the unit will be the State and now the whole of India.” It was held in this
judgement at page 34 para 86 “moral education disassociated from any denominational doctrine is
not prohibited.”
It was held at page 33 para 84 as follows---- “ the freedom to manage religious affairs is provided by
Article26. This Article gives the right to every religious denomination or a section thereof to exercise
the rights that it stipulates. However, this right has to be exercised in a manner that is conformity
with public order, morally and health”.
It was held at para 205 on page 75 as follows—“In His Holiness Kesavananda Bharathi Sri
Padagalvaru etc. Vs. State of Kerala & Another Etc.----1973 (4) CC 225, that the Constituent
Assembly debates although not conclusive, yet the intention of framers of the Constitution enacting
provisions of the constitution can throw light in ascertaining the intention behind such provision”.
This decision is referred only with regard to the aspect that constitutional debate indicates that with
special consensus the constitutional word “Bharath” is introduced in order to signify what is meant
by India. Therefore, any interpretation or the administration or the vigilance with regard to minority
institutions in this country is to be followed only keeping the constitutional structure of Bharath
forgetting British India.
There is a reference in this judgement on page 107 in para324 (16) which states... “the Preamble
hoped to create one united integrated India.” It is also seen from this judgement on page 118 that
Pandit Hridaynath Kanzru stated “I think that it is desirable in view of the importance that we have
attached to various provisions accepted by us regarding the development of a feeling of unity in this
country.”
Reference is also made to AIR 2005 SC 3226 (1) (AIR SC on CD-ROM 1950-2007) it was held at page
96 in para 94 as follows...
“Article 30(1) s intended to instil confidence in minorities against any executive or legislative
encroachment of their right to establish and administer educational institutions of their choice.
Article 30 (1)though styled as a right is more in the nature of protection of minorities.....Minorities
being numerically less quo non-minorities may not be able to protect their religion or language and
such cultural values and their educational institutions will be protected under Article 30 at the stage
of law making. However, merely because Article 30(1) has been enacted minority educational
institutions do not become immune from the operation of regulatory measure because the right to
administer does not include the right to mal-administration...”
It was also held in this judgement at page 97 –“Any regulation framed in the
national interests
must
necessarily apply to all educational institutions whether run by
minority or the majority.
Such a
limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be said as to
overwrite the
national interests
or to prevent the Government from framing the regulations in that
behalf.”
It is interesting to note that as reported in (2003) 7 SCC 13, the former Chief Justice of India wrote a
letter to the Supreme Court to issue necessary instructions and to issue necessary directions to the
State to educate its citizens in the matter of Fundamental Duties so that a correct balance may
emerge between the rights and duties. This letter is treated as writ petition. While referring to
Justice J.S. Varma committee on
operalization
of fundamental duties as accepted and a strong
suggestion has been made for their early implementation. It is stated that the commission
inter alia
recommends “3.40-2 education begins at home, the examples they said the environment of
enlightenment and tolerance that is necessary to produce good citizens cannot be subcontracted to
former schooling....schemes, should therefore be framed that includes parents in social activities
that have as their objectivity, its age, old traditions. It welcomes to persecution of every faith, its
virtues of tolerance of and respect for all religions
and certain pride belonging to this land and
being considered as Indians....It must be translated into reality...The transformation as the potential
to make our Nation strong, invisible and to command the respect of the world.”
Reference is made to these judgements to analyse all this thought that has been passed in the above
paragraphs and the views expressed by this author.
It was held in AIR 1992 SC 1630 (1)St. Stephens College etc,. (petitioner) vs. The University of Delhi
etc. (respondent) at para93- “India is very much a Nation in tie making.” It was held at para 135- “we
cannot overlook that religious fundamentalism and a linguistic parochialism leads to fissiparous
tendencies and obstructs the national unity as a whole. It is necessary that minorities should join and
be part and parcel of common stream of the country.”
At para 140 it is stated as follows—“A.N. Ray Chief Justice Ahmadabad St. Xaviers College Society
Case laid down in the context of right of administration of minority educational institution that the
best administration will reveal no trace or colour of minority....best compliment that can be paid to a
minority institution is that it does not rest or proclaim its minority character.”
Therefore the mandate of nationalism and the theory of minority institutions have to be approached
as follows—(1) The theory of right of citizens of Bharath and at the same time the duties of citizens
of Bharath have to be taken into consideration (2) it must be remembered that the concept of
minority institutions is only with regard to protection of that particular class but not for
propagation of a particular class. (3)the ever watchful administration must visualize how the
institution of the minority is working in order to protect nationalism. (4) the State will not be part of
any particular religion, language or tradition but it should protect the national character of Bharath.
Writer’s ambition: I wish and hope that Bharath Nation will be illuminating with this kind of
nationalism and national unity.
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